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2013 DIGILAW 2420 (BOM)

Sangamner Nagar Parishad v. Tanaji Madhav Abhang

2013-11-28

S.S.SHINDE

body2013
Judgment : 1. Rule. Rule made returnable forthwith. With the consent of the parties, the petition is taken up for final disposal. 2. Brief facts leading to file present writ petition, as disclosed in this petition, are as under: The respondent herein, was working as Head Clerk with the Municipal Council, Sangamner. The respondent filed Complaint (ULP) No. 19 of 2006 before the Labour Court, Ahmednagar and contended that, he is illegally dismissed from the services on 04/04/2006 by the petitioner and inquiry held against him is not legal, fair and proper and order of dismissal is illegal. 3. The petitioner Municipal Council filed written statement before the Labour Court stating therein that, the respondent has committed serious misconduct thereby indulging himself in 150 proposals of Gunthewari and fabricated signatures of the Chief Officer on the said proposals and also committed serious illegalities/irregularities. 4. The Labour Court by the judgment and order dated 22/06/2012 dismissed the complaint. Being aggrieved, the respondent herein, filed Revision before the Industrial Court, Ahmednagar. The Industrial Court partly allowed the revision and modified the judgment and order passed by the Labour Court. It is held that, the applicant is entitled for the relief of continuity of service till attaining the age of retirement i.e. till 01/06/2006 and retirement benefits as applicable to other employees but shall not be entitled for wages for the intervening period from the date of dismissal till the date of attaining the age of retirement by way of punishment. 5. Learned Counsel appearing for the petitioner submits that, the Industrial Court while modifying the order of the Labour Court has not given any specific reasons and proceeded to modify the order passed by the Labour Court. It is submitted that, the Labour Court and also Industrial Court have concurrently held that, inquiry conducted by the Enquiry Officer is proper. It is further submitted that, the Labour Court has recorded the findings that the respondent has committed serious misconduct and therefore, the action taken by the petitioner is against the respondent is justified in law. It is submitted that, while exercising revisional jurisdiction, the Industrial Court cannot re-appreciate the evidence since it has limited jurisdiction under Section 44 of the Industrial Disputes Act, 1947. It is submitted that, while exercising revisional jurisdiction, the Industrial Court cannot re-appreciate the evidence since it has limited jurisdiction under Section 44 of the Industrial Disputes Act, 1947. It is submitted that, the Industrial Court had no jurisdiction or power to interfere with the punishment imposed upon the respondent once the inquiry is found to be proper. It is further submitted that, the Industrial Court has passed impugned judgment and order contrary to law laid down by the Supreme Court in the case of Bharat Heavy Electricals Ltd. vs. M. Chandrasekhar Reddy and others reported in (2005) 2 SCC 481 in which the Supreme Court in the facts of that case has taken a view that, interference with the award of punishment in a domestic enquiry is impermissible. Learned Counsel appearing for the petitioner also invited my attention to the judgment of this Court in the case of Bhangar Bros. and Co. Pvt. Ltd. Bombay vs. Engineering Workers Union, Thane and another reported in 2009(123) FLR 1016 and submits that, once findings are recorded that the charges are proved, the Labour Court has no power to re-appreciate the findings of the Enquiry Officer and reach to the different conclusion. Therefore, relying upon the grounds taken in the petition, annexures thereto and reasons recorded by the Labour Court and the Industrial Court, learned Counsel appearing for the petitioner submits that, the writ petition deserves to be allowed. 6. On the other hand, learned Senior Counsel appearing for the respondent invited my attention to the reasons recorded by the Industrial Court and submits that, the Industrial Court has rightly held that, the Labour Court has not recorded any specific findings about misconduct committed by the respondent. Learned Senior Counsel invited my attention to paragraph-31 from the judgment of the Labour Court and submits that, the Labour Court has recorded findings only in the said paragraph, however, not specified specific misconduct of the respondent. It is submitted that, the evidence of the witnesses of the petitioner itself would make it clear that, there was no cogent and convincing evidence against the respondent and therefore, the complaint filed by the respondent ought to have been allowed by the Labour Court. It is submitted that, the evidence of the witnesses of the petitioner itself would make it clear that, there was no cogent and convincing evidence against the respondent and therefore, the complaint filed by the respondent ought to have been allowed by the Labour Court. It is submitted that, no prejudice would be caused to the petitioner by the impugned judgment and order of the Industrial Court in as much as, the Industrial Court has not awarded any back wages and only ordered continuity in the service from the date of dismissal till date of attaining age of retirement. It is further submitted that, already the respondent has attained the age of superannuation and accordingly, he is retired from the services of the petitioner. He further submits that, in case this Court is inclined to interfere with the impugned judgment and order of the Industrial Court, in that case without prejudice to the rights and contentions of the respondent, the matter may be remanded back to the Industrial Court so as to decide the revision afresh. 7. I have given careful consideration to the submissions of the Counsel appearing for the petitioner and learned Senior Counsel appearing for the respondent. I have carefully perused the grounds taken in the petition, annexures thereto, judgment and order passed by the Labour Court and by the Industrial Court. Upon careful perusal of the findings recorded by the Labour Court in paragraph-31, it is abundantly clear that, the Labour Court did record findings on the point that, the inquiry conducted against the complainant was legal, fair and proper and findings given by the Enquiry Officer were not perverse. Therefore, the Labour Court referring to the fact that, already said Court has held that, inquiry conducted against the complainant was legal, fair and proper and findings giving by the Enquiry Officer were not perverse, observed that, it is not open for the Labour Court to revert back and consider the various contentions of the complainant in respect of inquiry. The Labour Court further observed that, the Labour Court has already given findings regarding legality and correctness of the inquiry, it is very clear that, charges proved against the complainant are of serious nature and punishment of dismissal from the service cannot be termed as shockingly disproportionate. Therefore, the Labour Court decline to interfere in the quantum of punishment. 8. The Labour Court further observed that, the Labour Court has already given findings regarding legality and correctness of the inquiry, it is very clear that, charges proved against the complainant are of serious nature and punishment of dismissal from the service cannot be termed as shockingly disproportionate. Therefore, the Labour Court decline to interfere in the quantum of punishment. 8. Upon perusal of the judgment of the Industrial Court, it appears that in paragraph-11, two points were framed for determination. Firstly, Does the applicant prove that the judgment and order passed by the Labour Court is perverse and illegal. Said point is answered partly in the affirmative. The Industrial Court in paragraph-16 of the impugned judgment observed that, though the inquiry conducted is held to be fair and proper and findings are held to be not perverse, however, proceed to observe that, the Labour Court has not discussed about what is actual misconduct committed by the complainant and further which record is tampered by the complainant. The Industrial Court proceeded further to hold that, considering nature of misconduct committed by the applicant and he is having attained age of retirement long back and at present he being suffering from paralysis, it would be appropriate to grant him retirement benefits by depriving the wages for the intervening period as and by way of punishment, however, for the sake of retirement benefit, the service rendered by the applicant required to be considered as continuous. Upon careful perusal of the entire judgment and order of the Industrial Court, the Industrial Court has not observed that, which findings of the Labour Court are perverse and why the Industrial Court felt that, nature of misconduct committed by the applicant does not deserve punishment of dismissal. There is no any specific reference to any particular point and further endeavour to find out how the findings recorded by the Labour Court are perverse. Learned Counsel for the petitioner is right in contending that, having been accepted that, the inquiry conducted by the Enquiry Officer is fair and proper, there was no reason for the Industrial Court to interfere in the judgment and order of the Labour Court. This Court in Bhangar Bros. and Co. Learned Counsel for the petitioner is right in contending that, having been accepted that, the inquiry conducted by the Enquiry Officer is fair and proper, there was no reason for the Industrial Court to interfere in the judgment and order of the Labour Court. This Court in Bhangar Bros. and Co. Pvt. Ltd., Bombay (supra), held that, once the Labour Court accepts the inquiry as fair and proper and records satisfaction that, the charges are proved then, Labour Court has no jurisdiction to interfere in the punishment proposed by the Enquiry Officer. The Supreme Court in the case of Bharat Heavy Electricals Ltd., (supra), in the facts of that case held that, without a finding based on records, that fact of loss of confidence of quantum of punishment is so harsh as to be vindictive or shockingly disproportionate, interference with the award of punishment in a domestic enquiry is impermissible. 9. In the present case as already observed, the Labour Court and the Industrial Court have recorded their satisfaction that, the inquiry conducted was fair and proper. The Labour Court while dismissing the complaint has considered that, whether punishment is disproportionate or not. The Industrial Court, without referring to the particular misconduct or without entering into the exercise of findings on misconduct recorded by the Labour Court are perverse, proceeded to modify the order of the Labour Court in revisional jurisdiction. Therefore, in the light of discussion herein above, the Industrial Court was not justified in modifying the order passed by the Labour Court in absence of specific reasons to do so in its revisional jurisdiction. However, since this Court deem it appropriate to remand the matter back to the Industrial Court, this Court refrains itself to enter into greater length on merits of the matter. Hence, the following order:: ORDER: (A) The judgment and order dated 25/04/2013 passed by the Industrial Court, Ahmednagar in Revision (ULP) No. 100 of 2012 is quashed and set aside. (B) Revision (ULP) No. 100 of 2012 is restored to its original file. The Industrial Court, Ahmednagar to hear the said revision afresh in accordance with law and decide the same within four months from today. (C) Parties through Counsel agree to appear before the Industrial Court, Ahmednagar on 16/12/2013. (B) Revision (ULP) No. 100 of 2012 is restored to its original file. The Industrial Court, Ahmednagar to hear the said revision afresh in accordance with law and decide the same within four months from today. (C) Parties through Counsel agree to appear before the Industrial Court, Ahmednagar on 16/12/2013. (D) The Industrial Court should not get influenced by the observations made herein above while deciding the Revision afresh on merits and decide the same in accordance with law, after affording proper opportunity of hearing to the parties. Rule made absolute on above terms. Writ Petition stands disposed of.